Page:Landsberg v. Scrabble Crossword Game Players.pdf/4

 P.2d 73, 78 (1950); Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 560, 90 P.2d 371, 374 (1939). Neither Landsberg nor S & R have cited California cases to us on the question of infringement, relying instead on federal cases. Therefore we will assume that California law parallels federal law on the question of infringement and analyze this case according to federal law.

B. Infringement.

To make out infringement, the plaintiff must establish that he owns the copyright in the work in question, that the defendant had access to the copyrighted work, and that there is “substantial similarity not only of the general ideas [of the works] but of the expression of those ideas as well.” Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977). In this case, it is undisputed that Landsberg owns the copyright in his work, and that S & R had access to it. The case turns on the issue of substantial similarity.

Similarity of expression must be established because it is an axiom of copyright law that copyright protects only an author’s expression of an idea and not the idea itself. 17 U.S.C. § 102(b); Mazer v. Stein, 347 U.S. 201, 217–218, 74 S.Ct. 460, 470–471, 98 L.Ed. 630 (1954). Corollary to this axiom is a strong policy permitting all to use freely the ideas contained in a copyrighted work so long as copyrighted expression is not appropriated.

One consequence of the policy in favor of free use of ideas is that the degree of substantial similarity required to show infringement varies according to the type of work and the ideas expressed in it. Cf. Krofft, 562 F.2d at 1167–68. Some ideas can be expressed in myriad ways, while others allow only a narrow range of expression. Fictional works generally fall into the first category. The basic idea of a fictional work might be that classic, boy meets girl. This idea can be expressed, as it has been through thousands of years of literature, with infinite variations in setting, sequence of incident, and characterization. An author wishing to write yet another work using the “boy meets girl” idea can choose from a wide range of materials in composing his or her own expression of the idea. Therefore a new work incorporating that idea need not be a verbatim copy or close paraphrase of an earlier work to infringe that work. A resemblance in details of setting, incident, or characterization that falls short of close paraphrase may be enough to establish substantial similarity and infringement. See, e.g., Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.), ''cert. denied'', 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936). Similarly, the Krofft court noted that the defendants there could choose from myriad ways to create puppets that would express the idea contained in plaintiff’s television series—“a fantasyland filled with diverse and fanciful characters in action.” 562 F.2d at 1165. As a result, although defendants pointed to numerous differences between their puppets and plaintiff’s, they were still held to be substantially similar.

Factual works are different. Subsequent authors wishing to express the ideas contained in a factual work often can choose from only a narrow range of expression. For example, Landsberg’s work states that “[t]he poor player simply attempts to make as many points as possible each turn.” The idea contained in that statement cannot be expressed in a wide variety of ways. Just about any subsequent expression of that idea is likely to appear to be a substantially similar paraphrase of the words with which Landsberg expressed the idea. Therefore, similarity of expression may have to amount to verbatim reproduction or very close paraphrasing before a factual work will be deemed infringed. 1 M. Nimmer, Nimmer on Copyright, § 2.11[A]–[B] (1968).